2020 Georgia Code
Title 24 - Evidence
Chapter 8 - Hearsay
Article 2 - Admissions and Confessions
§ 24-8-820. Testimony as to Child's Description of Sexual Contact or Physical Abuse

Universal Citation: GA Code § 24-8-820 (2020)
  1. A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, unless the adverse party forfeits or waives such child's testimony as provided in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.
  2. This Code section shall apply to any motion made or hearing or trial commenced on or after April 18, 2019.

(Code 1981, §24-8-820, enacted by Ga. L. 2011, p. 99, § 2/HB 24; Ga. L. 2013, p. 222, § 13/HB 349; Ga. L. 2019, p. 81, § 6/HB 424.)

The 2013 amendment, effective July 1, 2013, substituted the present provisions of this Code section for the former provisions, which read: "A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another shall be admissible in evidence by the testimony of the person to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability." See editor's note for applicability.

The 2019 amendment, effective April 18, 2019, designated the existing provisions of this Code section as subsection (a); and added subsection (b).

Cross references.

- Competency of children generally, § 24-6-601 et seq.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2019, "on or after April 18, 2019" was substituted for "on or after the effective date of this subsection" at the end of subsection (b).

Editor's notes.

- Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."

Law reviews.

- For article, "An Analysis of Georgia's Proposed Rules of Evidence," see 26 Ga. St. B.J. 173 (1990). For article, "Domestic Relations Law," see 53 Mercer L. Rev. 265 (2001). For article, "Evidence," see 53 Mercer L. Rev. 281 (2001). For article, "Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence," see 63 Mercer L. Rev. 1 (2011). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For note, "Admissibility of Video-taped Testimony: What is the Standard After Maryland v. Craig and How Will the Practicing Defense Attorney be Affected?," see 42 Mercer L. Rev. 883 (1991). For note, "The Georgia Child Hearsay Statute, and the Sixth Amendment: Is There a Confrontation?," see 10 Ga. St. U.L. Rev. 367 (1994). For comment, "Maryland v. Craig: The Constitutionality of Closed Circuit Testimony in Child Sexual Abuse Cases," see 25 Ga. L. Rev. 167 (1990).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Recordings
  • Reliability
  • Application
  • Statements Admissible
  • Jury Issues and Instructions

General Consideration

Editor's notes.

- In light of the reenactment of this title, effective January 1, 2013, the reader is advised to consult the annotations following Code Section24-4-414, for annotations on admissibility of similar acts in child molestation cases, which may also be applicable to this Code section. In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 24-3-16 are included in the annotations for this Code section.

In light of the similarity of the statutory provisions, annotations decided when the statute concerned statements from children aged 14 years or younger are included in the annotations for this Code section.

Constitutionality.

- Former O.C.G.A. § 24-3-16 was not constitutionally deficient. Rayburn v. State, 194 Ga. App. 676, 391 S.E.2d 780 (1990), cert. denied, 498 U.S. 969, 111 S. Ct. 434, 112 L. Ed. 2d 417 (1990) (decided under former O.C.G.A. § 24-3-16); Toledo v. State, 216 Ga. App. 480, 455 S.E.2d 595 (1995);(decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 was not unconstitutional for allowing the state to bolster the testimony of the victim while denying the same opportunity to the defendant. Weathersby v. State, 262 Ga. 126, 414 S.E.2d 200 (1992) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 did not violate the due process clause of the Georgia Constitution, Ga. Const. 1983, Art. I, Sec. I, Para. I, on its face and was not void for vagueness and uncertainty. Weathersby v. State, 262 Ga. 126, 414 S.E.2d 200 (1992) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 was not violative of the federal Sixth Amendment. McLelland v. State, 203 Ga. App. 93, 416 S.E.2d 340, cert. denied, 203 Ga. App. 907, 416 S.E.2d 340 (1992) (decided under former O.C.G.A. § 24-3-16); Fuller v. State, 211 Ga. App. 104, 438 S.E.2d 183 (1993);(decided under former O.C.G.A. § 24-3-16).

Applicability at date of trial.

- Testimony concerning an outcry made by the victim some four months after the last incident of child molestation was properly admitted under former O.C.G.A. § 24-3-16. While the outcry occurred prior to the effective date of former § 24-3-16, the determinative date as to the applicability of former § 24-3-16 was the date of trial. Vargas v. State, 184 Ga. App. 650, 362 S.E.2d 461 (1987) (decided under former O.C.G.A. § 24-3-16).

Defendant's constitutional rights not violated.

- Admission of videotapes in child molestation cases did not infringe upon a defendant's Sixth Amendment right to confront witnesses if the child victim testified. Frazier v. State, 195 Ga. App. 109, 393 S.E.2d 262 (1990) (decided under former O.C.G.A. § 24-3-16); Toledo v. State, 216 Ga. App. 480, 455 S.E.2d 595 (1995);(decided under former O.C.G.A. § 24-3-16).

Admission of a child molestation victim's out-of-court statements did not violate the defendant's Sixth Amendment right to confrontation since the statements bore sufficient "indicia of reliability." Smith v. State, 199 Ga. App. 378, 405 S.E.2d 78, cert. denied, 199 Ga. App. 907, 405 S.E.2d 78 (1991) (decided under former O.C.G.A. § 24-3-16).

Constitutional right of confrontation.

- Former O.C.G.A. § 24-3-16 was not constitutionally deficient. The defendant did not need to be placed in the position of calling the alleged victim to the stand in order to exercise the defendant's rights under the Sixth Amendment. Rather, the court will call the alleged victim at the request of either party, informing the jury that it was the court which had called the child and that both parties would have an opportunity to examine the child. Eberhardt v. State, 257 Ga. 420, 359 S.E.2d 908 (1987), cert. denied, 484 U.S. 1069, 108 S. Ct. 1036, 98 L. Ed. 2d 999 (1988) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 contemplated testimony about what a child victim said and did relevant to the alleged sexual contact from both the child and those witnessing the child's later reaction. The purpose of this procedure was to allow a defendant to exercise the defendant's right to confrontation without requiring the defendant to be cast unfavorably before the jury for forcing the child to testify; any "bolstering" by other witnesses could be explored by the defendant on cross-examination. Rayburn v. State, 194 Ga. App. 676, 391 S.E.2d 780 (1990), cert. denied, 498 U.S. 969, 111 S. Ct. 434, 112 L. Ed. 2d 417 (1990) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16, as construed by the Supreme Court in Sosebee v. State, 257 Ga. 298 (1987) and in other appellate cases, could not pass constitutional muster because the statute failed to put the onus on the prosecution to put the child victim on the witness stand to confront the defendant, and any cases suggesting the contrary were overruled; however, the former statute could be construed to survive a confrontation clause attack because the right of confrontation could be satisfied by construing the former statute to require pretrial notice of the state's intent to use a child victim's hearsay statements. Hatley v. State, 290 Ga. 480, 722 S.E.2d 67 (2012) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 required the prosecution to notify the defendant within a reasonable period of time prior to trial of the prosecutor's intent to use a child victim's hearsay statements and to give the defendant an opportunity to raise a confrontation clause objection; if the defendant objected, and the state wished to introduce hearsay statements, the state needed to present the child witness at trial; if the defendant did not object, the state could introduce the child victim's hearsay statements subject to the trial court's determination that the circumstances of the statements provided sufficient indicia of reliability, and the trial court should have taken reasonable steps to ascertain, and put on the record, whether the defendant waived the defendant's right to confront the child witness. Hatley v. State, 290 Ga. 480, 722 S.E.2d 67 (2012) (decided under former O.C.G.A. § 24-3-16).

Defendant's right of confrontation was not violated by the introduction of the victim's hearsay statements because the victim's statements to the victim's mother were non-testimonial, whereas the victim's statement to the forensic interviewer, made several weeks after the crimes, was testimonial; but even if the victim's statement to the forensic examiner, and the statements made by the victim and the victim's mother to the police were admitted erroneously, the errors were harmless beyond a reasonable doubt. The victim's statement to the forensic interviewer was the same as the victim's statement to the victim's mother, and the statements made by the victim and the victim's mother to police were cumulative of the victim's statement to the victim's mother, as well as the mother's testimony and the forensic interviewer's evidence was properly admitted against the defendant. Hatley v. State, 290 Ga. 480, 722 S.E.2d 67 (2012) (decided under former O.C.G.A. § 24-3-16).

Former statute valid despite equal protection challenge.

- Defendant asserted that defendant was similarly situated to all other criminal and civil litigants and that former O.C.G.A. § 24-3-16 created an irrational and arbitrary class of litigants because only persons charged with physical and/or sexual abuse of a child under the age of 14 were subject to the exception contained therein. These assertions were not enough to overcome the presumptive validity of former O.C.G.A. § 24-3-16. Dobbins v. State, 262 Ga. 161, 415 S.E.2d 168 (1992) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. §§ 24-3-16 and24-9-5 (see now O.C.G.A. §§ 24-8-820,24-6-601, and24-6-603) needed to be construed together. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. § 24-3-16); McGarity v. State, 212 Ga. App. 17, 440 S.E.2d 695 (1994);(decided under former O.C.G.A. § 24-3-16).

Competency of children to testify in a divorce action could be established only by demonstrating that the children understood the nature of an oath, as required by former O.C.G.A. § 24-9-5. Woodruff v. Woodruff, 272 Ga. 485, 531 S.E.2d 714 (2000) (decided under former O.C.G.A. § 24-3-16).

Procedure upon invocation of former O.C.G.A.

§ 24-3-16. - If the prosecution invoked former O.C.G.A. § 24-3-16 to introduce out-of-court declarations by the alleged victim, the court was required to do as follows: before the state rests, the court shall, at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child. The court shall then allow both parties to examine and cross-examine the child as though former O.C.G.A. § 24-3-16 had not been invoked. Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 did not require the court to make a finding of necessity before admitting into evidence the statement of a child under the age of 14 describing sexual contact. Newberry v. State, 184 Ga. App. 356, 361 S.E.2d 499 (1987) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 did not require that a hearing to determine indicia of reliability be held prior to receiving the testimony. Moreover, there is no requirement that the trial court make a specific finding of sufficient indicia of reliability in order for the out-of-court statements of child victims to be admissible. Xulu v. State, 256 Ga. App. 272, 568 S.E.2d 74 (2002) (decided under former O.C.G.A. § 24-3-16).

Admission of out-of-court outcry statement.

- It is not error for a trial court to admit an out-of-court outcry statement that meets the statutory requirements of O.C.G.A. § 24-8-820. Latta v. State, 341 Ga. App. 696, 802 S.E.2d 264 (2017), cert. denied, 2017 Ga. LEXIS 1021 (Ga. 2017), cert. denied, 138 S. Ct. 1582, 2018 U.S. LEXIS 2291, 200 L. Ed. 2d 768 (U.S. 2018).

Defendant must deal with child hearsay.

- If it is rational to imprison a defendant who causes a child to witness sexual contact or physical abuse, it is surely rational to make the defendant merely deal with hearsay from such a child, whom the defendant may require to appear in court to testify and face cross-examination; the fact that the General Assembly loosened the hearsay rule for child witnesses to crimes involving only sexual contact and physical abuse, as opposed to all crimes or all violent crimes, should pose no problem under a rational basis review. Bunn v. State, 291 Ga. 183, 728 S.E.2d 569 (2012) (decided under former O.C.G.A. § 24-3-16).

Court of appeals properly held that children's out-of-court statements about sexual conduct that happened to each other in their presence were admissible under the Child Hearsay Statute, O.C.G.A. § 24-3-16, because the court did not err in declining to extend the holding of Woodard v. State, 269 Ga. 317 (1998), which was overruled to the defendant's case; there is nothing irrational about creating disparate classes of criminal defendants based on the young age of the witnesses to their crimes. Bunn v. State, 291 Ga. 183, 728 S.E.2d 569 (2012) (decided under former O.C.G.A. § 24-3-16).

Viewing of video during deliberations.

- Trial court did not err in permitting the jury to view the video tape of the victim's forensic interview as the jury was entitled to consider the victim's out-of-court statements as substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-3-16. State v. Martinez-Palomino, 329 Ga. App. 304, 764 S.E.2d 886 (2014)(decided under former O.C.G.A. § 24-3-16).

Double jeopardy did not bar retrial.

- Trial court properly denied the defendant's plea in bar that alleged that the admission of the child victim's out-of-court statements violated the Georgia Child Hearsay Statute, former O.C.G.A. § 24-3-16, and U.S. Const., amend. VI as: (1) a retrial was not barred by the Double Jeopardy Clause, U.S. Const., amend. V, and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII, because the evidence against the defendant was not insufficient; (2) the child hearsay testimony could be properly introduced on retrial if the state proceeded under Hatley v. State, 722 S.E.2d 67 (Ga. 2012); and (3) the child hearsay evidence could be made admissible at re-trial by laying the proper foundation, and could be considered when examining whether the evidence was sufficient. Wadley v. State, 317 Ga. App. 333, 730 S.E.2d 536 (2012) (decided under former O.C.G.A. § 24-3-16).

Recordings

Admission of videotape.

- In a child molestation case, defendant knew that the videotaped interview of one of the children was to be played for the jury, that the child would not be testifying for the state, and that defendant had the opportunity to call the child, but defendant did not inquire about the child's availability to testify at trial, nor did defendant request that the child be produced to testify; thus, the failure of the child to testify at trial did not make the videotaped statements inadmissible at trial. Baker v. State, 252 Ga. App. 238, 555 S.E.2d 899 (2001) (decided under former O.C.G.A. § 24-3-16).

State proffered substantial evidence to establish the reliability of children's videotaped statements accusing defendant of molestation, and the proffer was then supported by evidence presented at trial; thus, the state fulfilled its burden in demonstrating that the children's statements had the "requisite degree of trustworthiness" to be admitted at trial and the trial court did not abuse the court's discretion in admitting the videotapes. Baker v. State, 252 Ga. App. 238, 555 S.E.2d 899 (2001) (decided under former O.C.G.A. § 24-3-16).

Reliability of a child's videotaped statement was established since the child was not subjected to repeated questioning by different people, nor was evidence presented that the child was coached, the child's mother called the police almost immediately after discovering the molestation, and the fact that an interview took place some time after the incident, did not, without more, make the statement unreliable; the juvenile had ample opportunity to cross-examine the victim and question the child about the child's memory of and the circumstances surrounding the child's statement. In the Interest of A.H., 259 Ga. App. 608, 578 S.E.2d 247 (2003) (decided under former O.C.G.A. § 24-3-16).

Trial court did not abuse the court's discretion when the court allowed the state to show the jury videotapes of interviews police made with children who accused defendant of touching their genitals, or when the court allowed the children's parents to testify about statements their children made to them, and the appellate court held that evidence which showed that defendant touched the genitals of several children who were enrolled in tae kwon do classes defendant taught and sodomized three children was sufficient to sustain defendant's convictions on 18 counts of child molestation and three counts of aggravated child molestation. Fiek v. State, 266 Ga. App. 523, 597 S.E.2d 585 (2004) (decided under former O.C.G.A. § 24-3-16).

Trial court did not err in admitting the videotaped statement of the child victim in the defendant's trial for child molestation since the child was 11 years old when the statement was made, the clinical psychologist who conducted the interview assessed and commented on the child's demeanor and emotional state, and testified that the child's language and vocabulary were generally within normal range, that the child gave sensory and contextual details about the incidents, that the child did not appear to have been coached, and that it was unnecessary to ask the child leading questions because the child provided sufficient details on the child's own; moreover, the child's out-of-court statements were detailed and consistent, the defendant had the opportunity to cross-examine the child in the presence of the jury, and had the opportunity to allow the jury to judge the child's demeanor, and the defendant also cross-examined the psychologist extensively regarding the statement. Harris v. State, 279 Ga. App. 241, 630 S.E.2d 853 (2006) (decided under former O.C.G.A. § 24-3-16).

In a child molestation case involving defendant's 13-year-old child, defense counsel was not ineffective for not requesting that the trial court determine the reliability of the victim's videotaped statement under former O.C.G.A. § 24-3-16 or for not objecting to the statement's admission; the victim spontaneously told the victim's foster mother about the incidents when the victim was upset, and the victim repeatedly expressed love for the defendant and a desire not to get the defendant into trouble. Foster v. State, 286 Ga. App. 250, 649 S.E.2d 322 (2007), cert. dismissed, No. S07C1883, 2007 Ga. LEXIS 875 (Ga. 2007) (decided under former O.C.G.A. § 24-3-16).

In admitting the videotaped interview under former O.C.G.A. § 24-3-16, and allowing the defendant to cross-examine the victim at trial, the trial court determined that there were sufficient indicia of reliability surrounding the victim's out-of-court statements to justify the statement's admission. Phillips v. State, 284 Ga. App. 224, 644 S.E.2d 153 (2007) (decided under former O.C.G.A. § 24-3-16).

In a child molestation prosecution, videotaped interviews by the police with a defendant's victim had sufficient indicia of reliability to be admissible under former O.C.G.A. § 24-3-16 because the victim was interviewed outside the presence of the victim's parent and the victim's recounting of the events remained consistent; an additional safeguard was provided by the fact that the victim testified at the defendant's trial and, thus, was subject to cross-examination. Hughes v. State, 297 Ga. App. 581, 677 S.E.2d 674 (2009) (decided under former O.C.G.A. § 24-3-16).

In a conviction of aggravated child molestation and aggravated sodomy involving a four-year-old child, there was sufficient indicia of reliability to admit a videotape of a forensic interview of the child because the interviewer developed a rapport with the child, and there were no threats or promises for the child's answers. Brown v. State, 300 Ga. App. 359, 685 S.E.2d 377 (2009) (decided under former O.C.G.A. § 24-3-16).

Evidence supported defendant's conviction for molesting defendant's granddaughter. The videotaped police interview of the victim and the testimony of the victim's mother, the child therapist, and the victim's brother concerning what the victim told them, was substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-3-16. Towry v. State, 304 Ga. App. 139, 695 S.E.2d 683 (2010) (decided under former O.C.G.A. § 24-3-16).

Reliability of videotaped statements not established.

- Circumstances surrounding the making of videotaped statements of 4 1/2 year old alleged child molestation victim failed to establish the inherent reliability of those statements, even though the victim used terminology which would not be expected of a child the child's age and although the child had no apparent motive to fabricate, the child's statements did not meet the test of "spontaneity and consistent repetition," some of the assertions made by the child during the two videotaped interviews were inconsistent with the known facts, and the interviews were conducted by persons acting in a law enforcement capacity, with the clear intention of gathering evidence for use against the defendant. Rolader v. State, 202 Ga. App. 134, 413 S.E.2d 752 (1991), cert. denied, 202 Ga. App. 907, 413 S.E.2d 752 (1992) (decided under former O.C.G.A. § 24-3-16).

Videotape of interview between child victim and investigating officer.

- When the circumstances surrounding the videotape of an interview between a child victim and an investigating officer provided sufficient indicia of reliability of the statements therein, any conflicts between the videotaped statement and the testimony of the child at trial would not necessarily render the former inadmissible, but would rather present a question of credibility of the witness to be resolved by the trier of fact. Ware v. State, 191 Ga. App. 896, 383 S.E.2d 368 (1989) (decided under former O.C.G.A. § 24-3-16).

Taped interview with a child was admissible under former O.C.G.A. § 24-3-16 if it described acts of sexual contact or physical abuse, if the child was available to testify in court, and if the circumstances of the statement were shown to have sufficient indicia of reliability. Vick v. State, 194 Ga. App. 616, 391 S.E.2d 455 (1990) (decided under former O.C.G.A. § 24-3-16); Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000), cert denied, 532 U.S. 1029, 121 S. Ct. 1979, 149 L. Ed. 2d 771 (2001);(decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 did not require a hearing for the determination that reliability of the videotaped interviews of a four-year-old child was indicated by the neutrality of the interviewer and place of interview, and the spontaneity of the interviews conducted shortly after the alleged molestation. King v. State, 194 Ga. App. 662, 391 S.E.2d 660, cert. denied, 194 Ga. App. 912, 391 S.E.2d 660 (1990) (decided under former O.C.G.A. § 24-3-16).

When two videotapes of interviews with a child were showed to a jury, the child was called as the court's witness and testified similarly, and the child was examined by all parties, there was no abuse of the court's discretion in finding the child qualified to testify, nor in admitting the videotapes. Frazier v. State, 195 Ga. App. 109, 393 S.E.2d 262 (1990) (trial held prior to April 19, 1989) (decided under former O.C.G.A. § 24-3-16); Dupree v. State, 206 Ga. App. 4, 424 S.E.2d 316 (1992); Lindo v. State, 218 Ga. App. 756, 463 S.E.2d 148 (1995) (decided under former O.C.G.A. § 24-3-16).

Requirement of a neutral interviewer and place of interview should be recognized as relating to the atmosphere, circumstances, and manner in which the interview was conducted. Interviews by police officers of young victims of sexual abuse are not barred; such cases merely require that the officer conduct the interview in a manner conducive to eliciting the truth. Knight v. State, 210 Ga. App. 228, 435 S.E.2d 682 (1993) (decided under former O.C.G.A. § 24-3-16).

In a case where defendant was tried for first degree cruelty to children for allegedly burning the three-year-old victim's back with a cigarette, the trial court did not abuse the court's discretion in admitting the victim's videotaped interview; although several factors weighed against admitting the videotaped interview, such as the victim's tender age, the length of time between the event and the videotaped interview, and the fact that police officers conducted the interview, these factors did not require that the videotaped interview be excluded as a matter of law, and because the victim testified at trial, defendant had the opportunity to cross-examine the victim regarding the victim's memory of the interview and the circumstances surrounding the interview. Conley v. State, 257 Ga. App. 563, 571 S.E.2d 554 (2002) (decided under former O.C.G.A. § 24-3-16).

In defendant's conviction for child molestation, trial court properly denied defendant's motion for directed verdict of acquittal as sufficient evidence existed based on testimony of the child victim's parent, who testified as to discovery of defendant on top of the victim; further evidence in support of defendant's conviction included the child's videotaped police interviews describing what happened. Lopez v. State, 291 Ga. App. 210, 661 S.E.2d 618 (2008) (decided under former O.C.G.A. § 24-3-16).

Whether videotape bolstered testimony irrelevant.

- After a defendant molested a nine-year-old child, a videotape of the child's interview by a detective was properly admitted under former O.C.G.A. § 24-3-16 as a statement made by a child under the age of 14 years describing an act of sexual contact. Whether the videotape also bolstered the child's trial testimony was immaterial. Whitaker v. State, 293 Ga. App. 427, 667 S.E.2d 202 (2008) (decided under former O.C.G.A. § 24-3-16).

Trial court did not abuse the court's discretion in admitting a videotaped forensic interview of a child molestation victim because the victim testified at trial and was subject to cross-examination about the circumstances surrounding the videotaped interview and statements the victim made during the interview, and it was the jury's responsibility, as the trier of fact, to resolve any inconsistencies in the victim's statements and judge the victim's credibility; there was no evidence to support the defendant's claim that the victim recanted the allegations the victim made or that the victim falsely accused the defendant of molesting the victim's sister, the videotape showed that the victim was sufficiently credible for the interview to be shown to the jury, and the interview in question took place at a neutral location with only the interviewer present. Lynn v. State, 300 Ga. App. 170, 684 S.E.2d 325 (2009) (decided under former O.C.G.A. § 24-3-16).

Victim's testimony not bolstered by videotape.

- Playing of the videotape of the interview with the victim before the jury did not constitute an impermissible bolstering of the victim's testimony. Knight v. State, 210 Ga. App. 228, 435 S.E.2d 682 (1993) (decided under former O.C.G.A. § 24-3-16).

Videotape of interview between child victim and psychotherapist.

- Admission of a videotaped interview with a child victim of defendant's sexual offenses was proper under the Child Hearsay Statute, former O.C.G.A. § 24-3-16, although defendant was not indicted for offenses requiring proof of sexual contact or physical abuse as the former statute applied to descriptions of physical abuse or sexual contact, which could have been merely verbal. Carolina v. State, 276 Ga. App. 298, 623 S.E.2d 151 (2005) (decided under former O.C.G.A. § 24-3-16).

Audio tape of victim's testimony recorded by social worker was admissible even though the tape was stopped and restarted several times during the interview; the victim was available to testify and testimony of the social worker established sufficient indicia of reliability. Martin v. State, 205 Ga. App. 591, 422 S.E.2d 876, cert. denied, 205 Ga. App. 900, 422 S.E.2d 876 (1992) (decided under former O.C.G.A. § 24-3-16).

In child molestation case, videotape of victim was properly admitted after the trial court conducted a lengthy hearing outside the presence of the jury to determine the tape's reliability. Court considered the atmosphere and circumstances of the interview, the spontaneity of the victim's responses, and the demeanor of the victim during the interview. Penaranda v. State, 203 Ga. App. 740, 417 S.E.2d 683, cert. denied, 203 Ga. App. 907, 417 S.E.2d 683 (1992) (decided under former O.C.G.A. § 24-3-16); Allen v. State, 263 Ga. 60, 428 S.E.2d 73 (1993);(decided under former O.C.G.A. § 24-3-16).

Trial court did not err in admitting a videotaped statement of a defendant's daughter describing incidents of molestation committed by defendant when she was four years old because the daughter was available for cross-examination at trial, although she was not very responsive to the state's questions on direct examination. Conn v. State, 300 Ga. App. 193, 685 S.E.2d 745 (2009), cert. denied, No. S10C0226, 2010 Ga. LEXIS 131 (Ga. 2010) (decided under former O.C.G.A. § 24-3-16).

Reliability

Dual burden in determining reliability.

- Former O.C.G.A. § 24-3-16 imposed a dual burden on the trial court and the proponent of child hearsay testimony. The state had to present evidence proving the child's reliability, and the court had to assess that evidence. But former O.C.G.A. § 24-3-16 did not authorize the state to eviscerate the rule against improper bolstering. Roberson v. State, 241 Ga. App. 226, 526 S.E.2d 428 (1999) (decided under former O.C.G.A. § 24-3-16).

Burden is on the state to show that the state's evidence falls within the hearsay exception created by former O.C.G.A. § 24-3-16 for the admission of out-of-court hearsay statements of a child victim of sexual abuse; former O.C.G.A. § 24-3-16 imposed a dual burden on the trial court and the proponent of child hearsay testimony, as the state had to present evidence proving the child's reliability, and the trial court had to assess that evidence. Ferreri v. State, 267 Ga. App. 811, 600 S.E.2d 793 (2004) (decided under former O.C.G.A. § 24-3-16).

Court could consider factors in determining reliability.

- Trial court could consider certain factors when deciding if a child's statement's provided sufficient indicia of reliability pursuant to the former statute; any bolstering could be explored by a defendant in cross examination. Howard v. State, 252 Ga. App. 465, 556 S.E.2d 536 (2001) (decided under former O.C.G.A. § 24-3-16).

Factors considered in determining reliability.

- Indicia of reliability must spring from the circumstances of the statement. The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present); (2) the spontaneity of the child's statement to the people present; (3) the child's age; (4) the child's general demeanor; (5) the child's condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child's general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child's statement, and the type of coaching and circumstances surrounding the statement and, the nature of the child's statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. Gregg v. State, 201 Ga. App. 238, 411 S.E.2d 65, cert. denied, 201 Ga. App. 903, 411 S.E.2d 65 (1991) (decided under former O.C.G.A. § 24-3-16); Williams v. State, 204 Ga. App. 878, 420 S.E.2d 781 (1992); Gentry v. State, 213 Ga. App. 24, 443 S.E.2d 667 (1994) (decided under former O.C.G.A. § 24-3-16); Heard v. State, 221 Ga. App. 166, 471 S.E.2d 22 (1996);(decided under former O.C.G.A. § 24-3-16);(decided under former O.C.G.A. § 24-3-16).

Reliability hearing required.

- Defendant's child molestation conviction was reversed as given that the child victim was three-years-old, that the victim gave inconsistent statements, that the victim might have been coached by defendant's estranged spouse, that law enforcement was involved in the child's interviews, that 75 out-of-court hearsay statements of the child were introduced by the state, and that the child's hearsay statements formed the bulk of the evidence against defendant, a pretrial Gregg hearing on the reliability of the statements was required under former O.C.G.A. § 24-9-5. Ferreri v. State, 267 Ga. App. 811, 600 S.E.2d 793 (2004) (decided under former O.C.G.A. § 24-3-16).

Reliability of statement established.

- Victim's statement to the victim's friend had a sufficient indicia of reliability to render the statement admissible pursuant to former O.C.G.A. § 24-3-16 since both young women were 13 years old, there was no evidence to suggest the victim had a tendency to exaggerate or falsify information, the victim's friend testified that discussing the acts of molestation obviously upset the victim and the victim began to cry, and all of the victim's out-of-court statements and the victim's in-court testimony were consistent. Peters v. State, 206 Ga. App. 143, 424 S.E.2d 372 (1992) (decided under former O.C.G.A. § 24-3-16).

Victims' statements made to their mother and social caseworker were sufficiently reliable in light of: (1) their repeated consistency over the course of three separate occasions; (2) the children's apparent uncoached and generally relaxed trial demeanor; (3) the lack of any promises or threats made to the children; and (4) their full availability to the defendant's cross-examination at trial. Tucker v. State, 208 Ga. App. 441, 430 S.E.2d 811 (1993) (decided under former O.C.G.A. § 24-3-16).

There was a sufficient showing of reliability when the victim's statements, introduced through hearsay at trial, were made originally by the victim in a spontaneous manner without apparent coaching and, although there was evidence presented that the victim had originally named other possible perpetrators, the victim's later statements consistently named the defendant. White v. State, 211 Ga. App. 694, 440 S.E.2d 68 (1994) (decided under former O.C.G.A. § 24-3-16).

Trial court properly admitted child hearsay testimony after the victim's version of events as recounted to the victim's mother to sheriff's department officials, to Department of Family & Children Services representatives, in the victim's grand jury testimony, and in the victim's trial testimony was not shown by defendant to be inconsistent. Tidwell v. State, 219 Ga. App. 233, 464 S.E.2d 834 (1995) (decided under former O.C.G.A. § 24-3-16).

Testimony of several witnesses regarding what the 11-year-old victim told the witnesses about an incident soon after the incident happened was admissible and the court was not required to make an explicit finding of sufficient indicia of reliability. Wells v. State, 222 Ga. App. 587, 474 S.E.2d 764 (1996) (decided under former O.C.G.A. § 24-3-16).

Considering the child's age; the immediacy and spontaneity of the outcry to the child's mother; the general consistency of the child's statements to numerous adults trained to work with abused children (police, medical personnel, and a DFACS worker); the lack of time between the incident and the outcry, thereby demonstrating the absence of "coaching"; the child's fear of the defendant; and the physical manifestations of possible abuse consistent with the child's statements, the record established a sufficient showing of indicia of reliability within the meaning of former O.C.G.A. § 24-3-16 so as to support the admission of the outcry testimony. Medina v. State, 234 Ga. App. 13, 505 S.E.2d 558 (1998) (decided under former O.C.G.A. § 24-3-16).

Although the child gave differing accounts as to the number of times the defendant had molested the child, under the totality of the circumstances, the child's out-of-court statements bore sufficient indicia of reliability to authorize the statement's admission in evidence. Jenkins v. State, 235 Ga. App. 53, 508 S.E.2d 710 (1998) (decided under former O.C.G.A. § 24-3-16).

Taped statement of the young victim was properly found to be reliable, notwithstanding that the victim was interviewed after the victim's mother was interviewed in the victim's presence, since the interviewing officer testified that the victim was not coached and spoke voluntarily and no evidence was presented showing that the tape was unreliable or inadmissible. Scroggins v. State, 237 Ga. App. 122, 514 S.E.2d 252 (1999) (decided under former O.C.G.A. § 24-3-16).

Considering the immediacy and spontaneity of the child's outcry to the father, the child's age, the limited time between the child's return home and the initial outcry, thus demonstrating the absence of coaching, and the general consistency of the child's statements to several adults, sufficient indicia of reliability was established to support the admission of the challenged statements. Herrington v. State, 241 Ga. App. 326, 527 S.E.2d 33 (1999) (decided under former O.C.G.A. § 24-3-16).

Considering the atmosphere and circumstances under which a child made out-of-court statements, the spontaneity of a number of the statements, the absence of any threats, promise of benefits, or coaching, the consistency of the statements with one another, and the child's provision of certain details which could have been found corroborative, the trial court was authorized to find that sufficient indicia of reliability warranted admission of the statements in evidence. Croy v. State, 247 Ga. App. 654, 545 S.E.2d 80 (2001) (decided under former O.C.G.A. § 24-3-16).

There was no abuse of discretion in the decision of the court to admit testimony concerning a child's statements about sexual abuse by the child's father where the child's mother's testimony corroborated the statements made by the child to others and the foster mother never suggested to the child that the child's father had abused the child. In the Interest of J.W., 249 Ga. App. 849, 549 S.E.2d 802 (2001) (decided under former O.C.G.A. § 24-3-16).

Circumstances surrounding a six-year-old victim's out-of-court statements to the victim's mother and a nurse practitioner regarding being sexually molested contained sufficient indicia of reliability under former O.C.G.A. § 24-3-16 to allow the mother and the nurse practitioner to testify about the statements since: (1) there was no evidence that the victim was forced to make the statements or was coached regarding what to say; (2) there was a lack of contact with anyone concerning the incidents until the victim made the initial out-cry to the victim's mother; (3) the language the victim used was appropriate for a six-year-old; (4) the statement to the victim's mother was consistent with the statement that the victim made to the nurse practitioner; (5) the victim's demeanor during both statements showed that the victim was obviously upset by the acts of molestation; and (6) there was no evidence that the victim had been exposed to any sexually explicit material. In the Interest of K.C., 258 Ga. App. 363, 574 S.E.2d 413 (2002) (decided under former O.C.G.A. § 24-3-16).

Sufficient indicia of reliability existed for a trial court to have admitted a child victim's out-of-court statements regarding sexual abuse by the victim's father where, inter alia, the victim's description of the incidents were consistent every time the victim gave a statement to an adult prior to trial and the medical evidence corroborated the victim's testimony. Ivey v. State, 258 Ga. App. 719, 574 S.E.2d 908 (2002) (decided under former O.C.G.A. § 24-3-16).

Trial court permitted the state to introduce the testimony of the victim under the provisions of the child hearsay statute, former O.C.G.A. § 24-3-16, in a trial on a charge of child molesting because the victim was made available for cross-examination, and the trial court took sufficient steps to ensure that the victim's testimony was reliable. Howell v. State, 278 Ga. App. 634, 629 S.E.2d 398 (2006) (decided under former O.C.G.A. § 24-3-16).

Trial court did not abuse the court's discretion in concluding that a child's hearsay statements regarding abuse contained sufficient indicia of reliability to support their admission because the victim was nine years old at the time of the alleged incidents, there was no evidence that the child was forced to make the statements or coached regarding what to say, and the statements were made in a therapeutic setting without provocation or intervention from the state; although some of the statements were inconsistent with statements given to others regarding the defendant's participation in the abuse, the statements were also consistent with statements given to others. Finally, the victim was available in court, but defense counsel elected not to call the victim. Pickle v. State, 280 Ga. App. 821, 635 S.E.2d 197 (2006), cert. denied, No. S06C2150, 2007 Ga. LEXIS 110, 111 (Ga. 2007) (decided under former O.C.G.A. § 24-3-16).

In the sexual abuse case, the trial court did not abuse the court's discretion in finding, without a hearing, the child victim's videotape hearsay to be reliable under former O.C.G.A. § 24-3-16; the victim, age 12 at the time, did not refuse to speak with the interviewing detective, the victim was not coached, led, pressured, threatened, or induced, and the victim testified at trial and was subject to cross-examination. Newton v. State, 281 Ga. App. 549, 636 S.E.2d 728 (2006), overruled on other grounds, McCart v. State, 289 Ga. App. 830, 658 S.E.2d 465 (2008) (decided under former O.C.G.A. § 24-3-16).

During a defendant's trial for criminal charges arising out of sexual offenses committed against the defendant's 11-year-old child, the Georgia Child Hearsay Statute, former O.C.G.A. § 24-3-16, permitted the admission of the testimony of a caseworker that a sibling of the child saw the rapist having sex with the child and reported it several times to the defendant and the testimony of a neighbor to whom the victim said that the defendant had not tried to stop the rapist from molesting the victim; no hearing or express judicial findings of reliability were required, the defendant did not object at trial to the admission of the statements, and the defendant failed to explain on appeal how the record lacked evidence of reliability. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006) (decided under former O.C.G.A. § 24-3-16).

In defendant's trial for child molestation, the trial court did not abuse the court's discretion by admitting the victim's statements made to the victim's mother, brother, a child forensic investigator, and the investigating officer as the statements were spontaneous when made and were remarkably consistent and corroborated at trial by the testimony of the victim's siblings, the victim's videotaped interview, and defendant's confession. Simmons v. State, 291 Ga. App. 642, 662 S.E.2d 660 (2008) (decided under former O.C.G.A. § 24-3-16).

With regard to a defendant's convictions for child molestation and related crimes arising from actions the defendant took toward three children and those that the defendant forced the children to engage in amongst each other by gunpoint while the defendant was a babysitter for the children, the trial court did not err by allowing one of the victim's best friend to testify that the victim told the witness that the defendant had a gun and had made the victim do stuff as the testimony was properly admitted under the Child Hearsay Statute, former O.C.G.A. § 24-3-16. The victim's disclosure to the friend occurred in the relaxed setting of a private conversation between two friends, there was no evidence of any threats, promise of benefits, coaching, drugs, or alcohol that would have influenced the victim's disclosure, and there was no evidence that the victim had a tendency to exaggerate or falsify information or otherwise lacked general credibility. Sullivan v. State, 295 Ga. App. 145, 671 S.E.2d 180 (2008), cert. denied, No. S09C0624, 2009 Ga. LEXIS 215 (Ga. 2009) (decided under former O.C.G.A. § 24-3-16).

In a conviction for aggravated child molestation and child molestation for acts committed upon defendant's four-year-old daughter, the victim's statements had sufficient indicia of reliability because the victim made several spontaneous disclosures regarding the acts committed upon the victim by defendant using age-appropriate language, which did not appear to have been the result of adult coaching, and the videotaped statements were consistent with statements made to the victim's mother and therapist, which were made in a neutral location and without any threats or promises. Romani v. State, 303 Ga. App. 829, 695 S.E.2d 303 (2010) (decided under former O.C.G.A. § 24-3-16).

Although the defendant argued that the videotaped statement of the victim, which was admitted pursuant to the child hearsay statute found in former O.C.G.A. § 24-3-16, was not properly admitted because the trial court failed to make the findings of reliability required by that statute, the trial court actually did make a finding that there were sufficient indicia of reliability. Moreover, an express finding in that regard was not necessary as the statutory requirement was met after both parties rested; the record contained evidence which would support such a finding. Adams v. State, 288 Ga. 695, 707 S.E.2d 359 (2011) (decided under former O.C.G.A. § 24-3-16).

Recorded interview of the victim was admissible because the recording showed sufficient indicia of reliability including that, inter alia, the interview occurred outside the presence of the victim's mother, the interview resulted from the victim's spontaneous outcry, the victim appeared to understand the questions and the victim's responses seemed unrehearsed and spontaneous, and there was no evidence the victim received either threats or promises. Anderson v. State, 315 Ga. App. 679, 727 S.E.2d 504 (2012) (decided under former O.C.G.A. § 24-3-16).

Defense attorney was not subject to disqualification as a necessary witness to a child's statement.

- Molestation defendant's attorney was not subject to disqualification on the basis that the attorney's testimony was necessary for admission of a child's statement in the attorney's presence under former O.C.G.A. § 24-3-16. The testimony was not necessary under Ga. St. Bar R. 4-102(d):3.7(a) because the child's mother was present at the interview and could testify to the circumstances of the statement. Schaff v. State, 304 Ga. App. 638, 697 S.E.2d 305 (2010) (decided under former O.C.G.A. § 24-3-16).

Testimony of officer admitted.

- There was sufficient evidence of reliability of a child's statement to a police officer based on the officer's testimony that the child left the child's residence and reported the molestation immediately after the molestation occurred, that the officer spoke with the child the same evening, that the officer saw no evidence that the child was coached, and the officer did not lead the child in making a statement. Crider v. State, 246 Ga. App. 765, 542 S.E.2d 13 (2000) (decided under former O.C.G.A. § 24-3-16).

No error in failing to determine reliability.

- Because every event described by the detective and the investigator was confirmed by the victim in much greater detail, there was no error in failing to determine the reliability of the victim's statements. Nelson v. State, 255 Ga. App. 315, 565 S.E.2d 551 (2002) (decided under former O.C.G.A. § 24-3-16).

Application

Statement about contact with other child inadmissible.

- Statements made by the victim to a witness about sexual contact between the defendant and another child were not admissible evidence. Riddle v. State, 208 Ga. App. 8, 430 S.E.2d 153 (1993) (decided under former O.C.G.A. § 24-3-16).

Age of child at time witness testifies irrelevant.

- It is plain from the face of former O.C.G.A. § 24-3-16 that the age of the child at the time the witness testifies is irrelevant as long as the child's statement about which the witness testifies was made while the child was under 14 years of age. Greer v. State, 201 Ga. App. 775, 412 S.E.2d 843, cert. denied, 201 Ga. App. 903, 412 S.E.2d 843 (1991) (decided under former O.C.G.A. § 24-3-16).

In a child molestation case where similar transaction evidence about alleged sexual abuse of the defendant's child was admitted, testimony of the child's other parent and a videotaped interview with the child were properly admitted under the child hearsay statute because the child was ten when the child made the statements; it was immaterial that the child was 19 at the time of the trial. Slade v. State, 287 Ga. App. 34, 651 S.E.2d 352 (2007), cert. denied, 129 S. Ct. 56, 172 L. Ed. 2d 24 (2008) (decided under former O.C.G.A. § 24-3-16).

Age of the child at the time the statements were made is determinative of their admissibility under former O.C.G.A. § 24-9-5. Darden v. State, 206 Ga. App. 400, 425 S.E.2d 409 (1992) (decided under former O.C.G.A. § 24-3-16).

Statements about which the friend testified concerning the molestation of the victim by the victim's stepfather were made when the victim was 13 years old and so were admissible under O.C.G.A. § 24-3-16. Geiger v. State, 258 Ga. App. 57, 573 S.E.2d 85 (2002) (decided under former O.C.G.A. § 24-3-16).

Because the child was not under the age of 14 when the child made the alleged hearsay statement at issue, former O.C.G.A. § 24-9-5, did not apply; moreover, because the contested witness's testimony was substantially the same as to what the child victim testified to, the evidence was cumulative and any error in admission was harmless. Currington v. State, 270 Ga. App. 381, 606 S.E.2d 619 (2004) (decided under former O.C.G.A. § 24-3-16).

As a child was 15 when the child told an officer that the defendant had molested the child, the officer's testimony about the child's accusation was not admissible under former O.C.G.A. § 24-9-5. Cash v. State, 294 Ga. App. 741, 669 S.E.2d 731 (2008) (decided under former O.C.G.A. § 24-3-16).

Trial court did not err in permitting the victim's mother to testify to the victim's prior consistent statements about what happened on the night the defendant had sexual intercourse with the victim over the defendant's bolstering objection because the victim was thirteen years old at the time the victim made the statements, the mother's testimony relating those statements was admissible under former O.C.G.A. § 24-9-5. Davis v. State, 303 Ga. App. 799, 694 S.E.2d 381 (2010) (decided under former O.C.G.A. § 24-3-16).

Mental ability equivalent to child below 14 years.

- Although there was evidence that the 15-year-old victim was mildly mentally handicapped with intellectual abilities and social skills equivalent to an average child below 14 years of age, the trial court improperly ruled that former O.C.G.A. § 24-9-5 applied. Foster v. State, 216 Ga. App. 26, 453 S.E.2d 482 (1995) (decided under former O.C.G.A. § 24-3-16).

When the state called the child as a witness and the child was fully cross-examined, there was no error. McLelland v. State, 203 Ga. App. 93, 416 S.E.2d 340, cert. denied, 203 Ga. App. 907, 416 S.E.2d 340 (1992) (decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-3-16 was inapplicable as the child testified at trial and was fully cross-examined by the defendant. Hayes v. State, 274 Ga. 875, 560 S.E.2d 656 (2002) (decided under former O.C.G.A. § 24-3-16).

Five-year-old child's out-of-court statements to the child's grandmother and aunt regarding a sexual assault were admissible under former O.C.G.A. § 24-9-5 because: (1) the child was upset when making the statement to the aunt; (2) the child was at home when making the statements, and there was no evidence that the child was forced to make the statements or that the child was coached regarding what to say; (3) the child used age-appropriate language; (4) the statements were consistent; and (5) the child testified and defense counsel had the opportunity to cross-examine the child. Ingram v. State, 262 Ga. App. 304, 585 S.E.2d 211 (2003) (decided under former O.C.G.A. § 24-3-16).

Age of witness irrelevant.

- Any competent person could present testimony under former O.C.G.A. § 24-9-5; thus, a 13-year-old friend properly testified. Peters v. State, 206 Ga. App. 143, 424 S.E.2d 372 (1992) (decided under former O.C.G.A. § 24-3-16).

Demeanor is one of the factors used to determine the reliability of a child's statement. Keller v. State, 221 Ga. App. 846, 473 S.E.2d 194 (1996) (decided under former O.C.G.A. § 24-3-16).

Finding as to reliability not a condition precedent.

- While the court must find that "the circumstances of the statement provide sufficient indicia of reliability," such finding is not a condition precedent to the admissibility of the statement; rather, the requirement of former O.C.G.A. § 24-9-5 was met if after both parties have rested, the record contained evidence which would support such a finding. Gregg v. State, 201 Ga. App. 238, 411 S.E.2d 65, cert. denied, 201 Ga. App. 903, 411 S.E.2d 65 (1991) (decided under former O.C.G.A. § 24-3-16); Tidwell v. State, 219 Ga. App. 233, 464 S.E.2d 834 (1995);(decided under former O.C.G.A. § 24-3-16).

Former O.C.G.A. § 24-9-5 did not require a hearing to determine "indicia of reliability" be held prior to receiving the testimony. Holden v. State, 202 Ga. App. 558, 414 S.E.2d 910 (1992) (decided under former O.C.G.A. § 24-3-16).

With regard to a defendant's convictions on several counts of child molestation, the trial court properly admitting the tape recorded statement of the child victim under former O.C.G.A. § 24-9-5 as by stating that the court found no reason to question the reliability of the child's statement, the trial court, in effect, made the required finding that the tape was reliable. There was no requirement that the trial court make a specific finding of sufficient indicia of reliability for the out-of-court statement of the child victim to be admissible. Taylor v. State, 292 Ga. App. 846, 666 S.E.2d 85 (2008), overruled on other grounds, Adams v. State, 299 Ga. App. 39, 681 S.E.2d 725 (2009) (decided under former O.C.G.A. § 24-3-16).

Questions regarding victim's credibility not allowed.

- Trial court erred in asking the witness, in the presence of the jury, whether the victim had exhibited "a general attitude of credibility" during the interview process. Buice v. State, 239 Ga. App. 52, 520 S.E.2d 258 (1999), aff'd, 272 Ga. 323, 528 S.E.2d 788 (2000) (decided under former O.C.G.A. § 24-3-16).

Corroboration of testimony not required.

- Former O.C.G.A. § 24-9-5 required only that the child be available to testify; it did not require the child to corroborate the hearsay testimony. Jones v. State, 200 Ga. App. 103, 407 S.E.2d 85 (1991) (decided under former O.C.G.A. § 24-3-16); Braddy v. State, 205 Ga. App. 424, 422 S.E.2d 260 (1992); Bookout v. State, 205 Ga. App. 530, 423 S.E.2d 7 (decided under former O.C.G.A. § 24-3-16); 205 Ga. App. 899, 423 S.E.2d 7 (1992); Kapua v. State, 228 Ga. App. 193, 491 S.E.2d 387 (1997), cert. denied,(decided under former O.C.G.A. § 24-3-16);(decided under former O.C.G.A. § 24-3-16).

Child molestation and aggravated child molestation convictions were upheld on appeal as a videotaped statement from the victim of those crimes accusing the defendant of requiring the victim to place the defendant's penis in the victim's mouth was corroborated by another witness; hence, the defendant was not denied due process and former O.C.G.A. § 24-9-5, did not require corroboration of child hearsay. Simpson v. State, 282 Ga. App. 456, 638 S.E.2d 900 (2006) (decided under former O.C.G.A. § 24-3-16).

Spontaneous statement admissible.

- Phrase "available to testify" means "competent to testify under [former] O.C.G.A. § 24-9-5" (see now O.C.G.A. §§ 24-6-601 and24-6-603). In re K.T.B., 192 Ga. App. 132, 384 S.E.2d 231 (1989) (decided under former O.C.G.A. § 24-3-16); In re K.G.L., 198 Ga. App. 891, 403 S.E.2d 464 (1991);(decided under former O.C.G.A. § 24-3-16).

Hearsay testimony of a social worker was properly admitted under former O.C.G.A. § 24-9-5 as a child was with a parent in a comfortable non-threatening environment when the child said, "(The defendant) hurt me. I don't like (the defendant. The defendant's) mean"; the statement was not made in response to any inquiry, but was a spontaneous reaction to something said by the parent. Revells v. State, 283 Ga. App. 59, 640 S.E.2d 587 (2006) (decided under former O.C.G.A. § 24-3-16).

In a case decided under former O.C.G.A. § 24-3-16, a victim's out-of-court statements to a forensic interviewer in group therapy and to the victim's family members had sufficient indicia of reliability as the statements appeared to be fairly spontaneous, without coaching, and, thus, the statements were properly admitted. Bowman v. State, 332 Ga. App. 766, 774 S.E.2d 805 (2015)(decided under former O.C.G.A. § 24-3-16).

Child "available to testify" in former O.C.G.A. § 24-3-16 meant one competent to testify under former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603). For offenses occurring before April 19, 1989, including child molestation, a child incompetent as a witness is not available to testify and any out-of-court statements are not rendered admissible by former O.C.G.A. § 24-3-16. Hunnicutt v. State, 194 Ga. App. 714, 391 S.E.2d 790 (1990), later appeal, 198 Ga. App. 572, 402 S.E.2d 534 (1991) (decided under former O.C.G.A. § 24-3-16).

Child was considered "available to testify" under former O.C.G.A. § 24-3-16 only if the child was "competent" to testify within the meaning of former O.C.G.A. § 24-9-5 (see now O.C.G.A. §§ 24-6-601 and24-6-603). Shaver v. State, 199 Ga. App. 428, 405 S.E.2d 281, cert. denied, 199 Ga. App. 907, 405 S.E.2d 281 (1991) (decided under former O.C.G.A. § 24-3-16).

Availability of child for pretrial interview.

- When the witness is a child, it is permissible for the legal custodian to decide whether the child will be made available to defense counsel for a pretrial interview. Kelly v. State, 197 Ga. App. 811, 399 S.E.2d 568 (1990) (decided under former O.C.G.A. § 24-3-16).

Defendant's right to notice of statements before trial.

- There was no requirement in former O.C.G.A. § 24-3-16 that the state provide the defense with pretrial notice of the state's intention to introduce child hearsay statements in evidence. Schwindler v. State, 254 Ga. App. 579, 563 S.E.2d 154 (2002), cert. denied, 538 U.S. 1016, 123 S. Ct. 1935, 155 L. Ed. 2d 854 (2003), recons. denied, overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020) (decided under former O.C.G.A. § 24-3-16).

Evidence admissible although child available to testify.

- In a prosecution for child molestation, hearsay evidence was admissible under former O.C.G.A. § 24-3-16 because the child was clearly available to testify, and the defendant did not challenge the existence of indicia of reliability. Trew v. State, 244 Ga. App. 76, 534 S.E.2d 804 (2000) (decided under former O.C.G.A. § 24-3-16).

Child's own statements about molestation were admissible under the child hearsay statute. Phillips v. State, 251 Ga. App. 179, 553 S.E.2d 847 (2001) (decided under former O.C.G.A. § 24-3-16).

Tape recorded police interview with an eight year old female victim was properly admissible under former O.C.G.A. § 24-3-16 at defendant's trial for child molestation. The child testified at trial and the defendant had the opportunity to cross examine the child regarding the child's memory and the circumstances surrounding the child's out-of-court statements, and the judge and jury had an opportunity to evaluate the child's veracity. The police officer testified about the manner in which the child's mother came to the officer and about the officer's involvement in recording the interview. There was no evidence that the child was forced to make the child's statements or that the child was coached regarding what to say. Hayes v. State, 252 Ga. App. 897, 557 S.E.2d 468 (2001) (decided under former O.C.G.A. § 24-3-16).

Although a trial court stated that a child witness would not testify at trial because the child kept crying, because the child was present and available to testify at trial, inadmissibility of the child's hearsay statements was not present under former O.C.G.A. § 24-3-16; the judge's comment that the witness would not testify was not an improper comment on the evidence under O.C.G.A. § 17-8-57. Brock v. State, 270 Ga. App. 250, 605 S.E.2d 907 (2004) (decided under former O.C.G.A. § 24-3-16).

Trial court did not abuse the court's discretion in denying defendant's motion in limine to exclude statements that the 13-year-old male child molestation victim made to the parents as such statements were admissible under former O.C.G.A. § 24-3-16 because sufficient indicia of reliability were established; the victim was present at trial and testified on direct examination as to why the victim initially denied the molestation when the victim was first confronted by the parents, and then why the victim finally admitted the molestation. Steverson v. State, 276 Ga. App. 876, 625 S.E.2d 476 (2005) (decided under former O.C.G.A. § 24-3-16).

Evidence presented at trial was sufficient to establish the reliability of the statement that the child victim made to an aunt, and the trial court did not err in finding that the statement had the requisite degree of trustworthiness to be admitted at trial; moreover, admission of the statement was harmless because all the child victims testified about the incident at trial and the defendant was acquitted of an aggravated child molestation charge. Nelson v. State, 279 Ga. App. 859, 632 S.E.2d 749 (2006) (decided under former O.C.G.A. § 24-3-16).

In the sexual molestation case, the trial court did not err in allowing into evidence the out-of-court statements of the six-year-old victim via the parent's hearsay testimony; the statements were admissible under former O.C.G.A. § 24-9-5 as the victim's out-of-court statements were made under circumstances that provided sufficient indicia of reliability in that the statements were made immediately after the incident and remained consistent, and the victim testified at trial and was cross-examined. Mikell v. State, 281 Ga. App. 739, 637 S.E.2d 142 (2006) (decided under former O.C.G.A. § 24-3-16).

No abuse of discretion resulted from the admission of testimony from the investigating officer, the child victim's mother, and the child victim's sister, about the alleged child molestation committed by the juvenile as: (1) the child was available to testify; (2) cross-examination of the child victim in the judge's chambers was attempted, but proved unsuccessful; and (3) the judge ruled that no further purpose would be served by having the child examined in the open courtroom. In the Interest of S.S., 281 Ga. App. 781, 637 S.E.2d 151 (2006) (decided under former O.C.G.A. § 24-3-16).

Defendant's conviction for aggravated child molestation under O.C.G.A. § 16-6-4 was affirmed because the trial court did not err by admitting the victim's prior out-of-court statement made in the initial interview with the police investigator, pursuant to O.C.G.A. § 24-8-820, that the victim believed that the bleeding from the victim's vagina had been caused by the defendant. Robinson v. State, 342 Ga. App. 624, 805 S.E.2d 103 (2017).

Juvenile court did not err in allowing the foster mother to give hearsay testimony about statements the children made under former O.C.G.A. § 24-3-16 because the statements described acts of sexual contact performed with another person in the children's presence and the children were physically in the courthouse and available to testify. In the Interest of A. S., 318 Ga. App. 457, 734 S.E.2d 225 (2012) (decided under former O.C.G.A. § 24-3-16).

Recanting of child victim's testimony.

- Former O.C.G.A. § 24-3-16 did not require the child to corroborate the hearsay testimony, and conflicts between the videotaped statement and the testimony of the child at trial do not necessarily render the former inadmissible, but rather present a question of credibility of the witness to be resolved by the trier of fact; despite a child victim's apparent recantation of the victim's accusations of molestation at trial, sufficient evidence supported convictions of child molestation and aggravated child molestation after the victim described the molestation in a pre-trial videotaped interview, when an expert witness testified that children may recant testimony with regard to sexual abuse for reasons unrelated to falsity, including embarrassment and fear, and a doctor also testified that the doctor's examination of the victim revealed "unusual" findings that would have caused the doctor to inquire regarding sexual abuse if the findings had appeared on a routine exam. Amerson v. State, 268 Ga. App. 855, 602 S.E.2d 857 (2004) (decided under former O.C.G.A. § 24-3-16).

Witnesses testified pursuant to former O.C.G.A. § 24-3-16 that the defendant's stepchild, then 12, told the witnesses about being repeatedly raped and molested by the defendant. That the stepchild recanted these statements at trial did not render the hearsay inadmissible under former O.C.G.A. § 24-3-16, and as the stepchild's credibility was for the jury to decide, the evidence was sufficient to support the defendant's convictions for rape, incest, and child molestation. Harvey v. State, 295 Ga. App. 458, 671 S.E.2d 924 (2009) (decided under former O.C.G.A. § 24-3-16).

Evidence admissible because victim took stand.

- Direct testimony of the victim and out-of-court statements the victim made to others were admissible since the victim took the stand and was examined and cross-examined by both parties. Fields v. State, 194 Ga. App. 149, 390 S.E.2d 71 (1990) (decided under former O.C.G.A. § 24-3-16).

Because a child victim testified of defendant's sexual abuse and that defendant showed the victim "pictures or movies where people didn't have any clothes on," the trial court properly admitted the videotapes and determined that a psychotherapist's testimony was admissible under former O.C.G.A. § 24-3-16; consequently, defendant failed to show that trial counsel was ineffective. Johnson v. State, 274 Ga. App. 69, 616 S.E.2d 848 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006); overruled on other grounds, Miller v. State, 285 Ga. 285, 676 S.E.2d 173 (2009); cert denied, Johnson v. Hart, 2015 U.S. Dist. LEXIS 168059 (N.D. Ga. 2015) (decided under former O.C.G.A. § 24-3-16).

In a case where a defendant was convicted of cruelty to children in violation of O.C.G.A. § 16-5-70, the trial court did not err in denying the defendant's motion for a mistrial or in refusing to strike certain testimony because hearsay statements by the defendant's daughter were admissible pursuant to former O.C.G.A. § 24-3-16 since the daughter was available to appear at trial and, in fact, took the witness stand. Stegall v. State, 297 Ga. App. 425, 677 S.E.2d 441 (2009) (decided under former O.C.G.A. § 24-3-16).

Defendant denied right of confrontation.

- Trial court erroneously and over objection allowed the state to ask defendant's daughter, in a prosecution for child molestation and incest, whether she had heard her brothers tell her mother what defendant had done to them, as this evidence was hearsay and double hearsay not falling the exception of former O.C.G.A. § 24-3-16 because the brothers were not available to testify. Cobb v. State, 209 Ga. App. 708, 434 S.E.2d 513 (1993) (decided under former O.C.G.A. § 24-3-16).

Defendant was not denied the right of confrontation, even though the defendant was unable to confront the victim when the victim's statements were originally made since the victim actually testified at trial and was subject to a thorough cross-examination. Reynolds v. State, 257 Ga. 725, 363 S.E.2d 249 (1988) (decided under former O.C.G.A. § 24-3-16); Sticher v. State, 209 Ga. App. 423, 433 S.E.2d 660 (1993); White v. State, 213 Ga. App. 429, 445 S.E.2d 309 (1994) (decided under former O.C.G.A. § 24-3-16);(decided under former O.C.G.A. § 24-3-16).

When the victim had been called by the state and the defendant had an opportunity to cross-examine without having to call the victim to the stand, the application of former O.C.G.A. § 24-3-16 did not violate the defendant's right to due process to confront the witness. Lawhorn v. State, 257 Ga. 780, 364 S.E.2d 559 (1988) (decided under former O.C.G.A. § 24-3-16).

Child witness's unresponsiveness to a number of questions as put by defendant did not constitute a deprivation of defendant's constitutional confrontation right so as to require that the witness's out-of-court statements be stricken since defendant was not denied the right to a thorough and sifting cross-examination of a witness who appeared to answer as well as the witness was capable of answering. Bright v. State, 197 Ga. App. 784, 400 S.E.2d 18 (1990) (decided under former O.C.G.A. § 24-3-16).

Defendant's right to confront and cross-examine a child witness was protected in spite of the child's unresponsiveness on cross-examination as to the merits of the case brought against the defendant; the child's unresponsiveness did not preclude the defendant from thoroughly cross-examining the child as to the veracity of hearsay statements made against the defendant's interests by the child's parents and the caseworker. Byrd v. State, 204 Ga. App. 252, 419 S.E.2d 111 (1992) (decided under former O.C.G.A. § 24-3-16).

Hearsay testimony of an investigator was properly admitted under former O.C.G.A. § 24-3-16 as the trial court listened to the audiotape of an interview with a child and concluded there had been no excessive coaching or planting of information and that there was sufficient indicia of reliability; moreover, the child was available for cross-examination by defense counsel concerning the child's claimed memory lapses and confusion, but counsel chose not to cross-examine the child. Revells v. State, 283 Ga. App. 59, 640 S.E.2d 587 (2006) (decided under former O.C.G.A. § 24-3-16).

Statements Admissible

Transcript of forensic interview admissible.

- In a prosecution for attempted child molestation, both the 10-year-old victim and the forensic interviewer testified at trial, and both were subjected to cross-examination; therefore, a transcript of the forensic interview was admissible under O.C.G.A. § 24-8-820. Shaum v. State, 355 Ga. App. 513, 844 S.E.2d 863 (2020).

Procedure employed by court satisfactory.

- When the trial court ultimately found a child victim's statements reliable and admitted the statements, and obviously would have done the same following a separate hearing, any conceivable error arising from the procedure employed by the trial court would have been of the defendants' own making since the defendant's persuaded the trial court to review the child's video-recorded statements and assured the court at the time that the procedure was satisfactory. Newman v. State, 286 Ga. App. 353, 649 S.E.2d 349 (2007) (decided under former O.C.G.A. § 24-3-16).

Statements of four-year-old properly admitted.

- Trial court did not err in exercising the trial court's broad discretion to admit a four-year-old child's out-of-court statements under the child hearsay statute, former O.C.G.A. § 24-3-16, with regard to defendant's convictions for aggravated child molestation and two counts of child molestation. Given the totality of the circumstances, the trial court was authorized to find sufficient indicia of reliability to admit the child's hearsay statements based on: (1) the child's tender years; (2) a therapist testifying that there was no indication that the child had been coached; and (3) an interview report that purportedly raised questions about coaching and the reliability of the statements was never introduced into evidence at trial. Brumbelow v. State, 289 Ga. App. 520, 657 S.E.2d 603 (2008) (decided under former O.C.G.A. § 24-3-16).

Interval of time between offenses and interview.

- Passage of an interval of time between the commission of the offenses and the making of the videotape does not preclude any possibility of spontaneity; the relevance of such chronological intervals must be considered along with other factors, but there is no authority for a bright line rule precluding admission of an interview. Knight v. State, 210 Ga. App. 228, 435 S.E.2d 682 (1993) (decided under former O.C.G.A. § 24-3-16).

Statement made days, weeks, or months after incident.

- Fact that the statement is made days, weeks, or even several months after the alleged incident, in and of itself, does not make the statement unreliable. Gregg v. State, 201 Ga. App. 238, 411 S.E.2d 65, cert. denied, 201 Ga. App. 903, 411 S.E.2d 65 (1991) (decided under former O.C.G.A. § 24-3-16).

Admission of similar transactions.

- Nothing in former O.C.G.A. § 24-3-16 restricted the statement to use solely in connection with the prior incident, and in child molestation cases, the appellate court had consistently upheld the admission of similar transactions involving incidents for which the defendant was not on trial. Guest v. State, 216 Ga. App. 457, 454 S.E.2d 622 (1995) (decided under former O.C.G.A. § 24-3-16).

Fathers of the two similar transaction victims were allowed to give hearsay testimony about the victims' statements that defendant had molested the victims, because this sort of hearsay testimony, describing a child's statement about sexual abuse, is admissible similar transaction evidence under former O.C.G.A. § 24-3-16. Deal v. State, 241 Ga. App. 879, 528 S.E.2d 289 (2000) (decided under former O.C.G.A. § 24-3-16).

Statements admissible as substantive evidence.

- In a criminal prosecution for sexual and non-sexual acts committed against a child, the jury was allowed to consider the child's out-of-court statements as substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-3-16, and conflicts between the child's testimony at trial and out-of-court statements were for the jury to resolve. Manders v. State, 281 Ga. App. 786, 637 S.E.2d 460 (2006) (decided under former O.C.G.A. § 24-3-16).

Subsequent report of molestation by another not admissible.

- Subsequent report by the victim of molestation by another was neither prior to nor necessarily inconsistent with the victim's earlier report that the defendant was the victim's only molester, and was not admissible as impeaching evidence. Thompson v. State, 187 Ga. App. 152, 369 S.E.2d 523 (1988) (decided under former O.C.G.A. § 24-3-16).

Testimony of child sodomy victim's accusation allowed.

- Trial court did not err in allowing testimony of the child's accusation that defendant committed the acts which constitute the crime of aggravated child molestation since the victim told the victim's grandmother that defendant orally sodomized the victim and that defendant forced the victim to perform acts of oral sodomy and the victim's mother's testimony that she had never discussed oral sodomy with the three-year-old victim and that she had never known the child to make up stories. Williams v. State, 204 Ga. App. 878, 420 S.E.2d 781 (1992) (decided under former O.C.G.A. § 24-3-16).

Child sodomy victim's statements qualified as "outcry" arguably so near to the event and so free of afterthought and forethought, connivance, or "reflective thought," as to be part of the res gestae, and so as to be evidence of the crime itself, and not merely a later statement by the child about the crime, as it might have been under former O.C.G.A. § 24-3-16, where these outcries occurred while the child was asleep the night the child returned home after the child's mother picked the child up at the child's grandfather's house where the crime allegedly occurred. Godfrey v. State, 187 Ga. App. 319, 370 S.E.2d 183 (1988) (decided under former O.C.G.A. § 24-3-16).

Statement as part of res gestae of child molestation charge.

- Child's statement to an investigative agent regarding a "game" in which the defendant, the child victim, and others removed articles of their clothing were admissible as describing part of the res gestae of the crime of child molestation. Berry v. State, 235 Ga. App. 35, 508 S.E.2d 435 (1998) (decided under former O.C.G.A. § 24-3-16).

Testimony by the mother of a child-molestation victim concerning allegations made by her child to her against defendant was properly admitted since the court considered atmosphere, circumstances, spontaneity, and demeanor in judging the reliability of the statement. Ortiz v. State, 188 Ga. App. 532, 374 S.E.2d 92, cert. denied, 188 Ga. App. 912, 374 S.E.2d 92 (1988) (decided under former O.C.G.A. § 24-3-16).

Testimony of victim's mother concerning statements made to her by victim was admissible. Dupree v. State, 206 Ga. App. 4, 424 S.E.2d 316 (1992) (decided under former O.C.G.A. § 24-3-16).

State complied with former O.C.G.A. § 24-3-16 by having the eight-year-old sexual molestation victim present at the courthouse and the trial court found indicia of reliability in a video interview of the child and the mother's testimony as to what the child told her when she interrupted the defendant with his pants down in a closed room with the child; the defendant did not object on Confrontation Clause grounds, waiving that issue. Matabarahona v. State, 335 Ga. App. 25, 780 S.E.2d 731 (2015), cert. denied, No. S16C0507, 2016 Ga. LEXIS 220 (Ga. 2016)(decided under former O.C.G.A. § 24-3-16).

Mother's testimony following victim's recanting of original statement.

- Although the victim was not under the age of 14 at the time the statements were made, this did not affect the admissibility of the testimony of the victim's mother and a detective because the victim's veracity was placed in issue after the victim signed an affidavit recanting the victim's original statement, and the victim was present at trial and was thoroughly cross-examined about the truthfulness of the victim's original statement. Frady v. State, 245 Ga. App. 832, 538 S.E.2d 893 (2000) (decided under former O.C.G.A. § 24-3-16).

Statement made through interpreter admissible.

- Statements made through an interpreter by an 11-year-old victim of child molestation to witnesses who asked the victim questions were admissible through testimony of the witnesses even though the interpreter did not testify at the trial. Davis v. State, 214 Ga. App. 360, 448 S.E.2d 26 (1994) (decided under former O.C.G.A. § 24-3-16).

Witness statements admissible despite child's unresponsiveness.

- Trial court did not err in refusing to strike the testimony of adult witnesses who related a child molestation victim's statements to the witnesses in spite of the victim's unresponsiveness as a witness when called by the court. Smith v. State, 228 Ga. App. 144, 491 S.E.2d 194 (1997) (decided under former O.C.G.A. § 24-3-16).

Child who told adults that defendant placed the defendant's finger inside her vagina was not unavailable within the meaning of former O.C.G.A. § 24-3-16 because she was unresponsive when she was asked questions in court, and the trial court's decision allowing adults to testify about out-of-court statements the child made to the adults was correct. Bell v. State, 263 Ga. App. 894, 589 S.E.2d 653 (2003) (decided under former O.C.G.A. § 24-3-16).

Physical appearance of victim at trial all that is required.

- Availability requirement under former O.C.G.A. § 24-3-16 was met even if the victim took the stand and was incapable of reiterating the accusations against the defendant or was uncommunicative or unresponsive; the child needed only physically appear at trial. Jenkins v. State, 235 Ga. App. 53, 508 S.E.2d 710 (1998) (decided under former O.C.G.A. § 24-3-16).

Victim/witness director allowed to testify regarding conversation with victim.

- In an incest and child molestation trial, there was no error in the trial court's decision allowing the victim/witness director to testify regarding the contents of a conversation the director had with the victim. Chambers v. State, 205 Ga. App. 78, 421 S.E.2d 326 (1992), appeal after remand, 213 Ga. App. 284, 444 S.E.2d 833, 1994 Ga. App. LEXIS 583 (1994), appeal after remand, 216 Ga. App. 361, 454 S.E.2d 567, 1995 Ga. App. LEXIS 127 (1995), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019) (decided under former O.C.G.A. § 24-3-16).

Witnesses' testimony regarding statements of victim's mother admissible.

- Witnesses' testimony that older victim said when she told her mother what defendant was doing, the mother said to pray and not tell anyone, was not beyond permissible hearsay under former O.C.G.A. § 24-3-16 because it was not offered to show the truth of matters asserted therein. Mother's response to her daughter was not an assertion but a request, and the testimony concerning her response was presented not to prove prayer and silence on the subject of defendant's conduct were desirable, but simply to show the mother's request for prayer and silence was made. Gibby v. State, 213 Ga. App. 20, 443 S.E.2d 852 (1994) (decided under former O.C.G.A. § 24-3-16).

Mother's and other professional witnesses' statements admissible.

- Trial court properly allowed hearsay testimony about statements made by the victim to the victim's mother, the school counselor, and the nurse practitioner who examined the victim pursuant to former O.C.G.A. § 24-3-16 in defendant's child molestation trial; defendant's arguments that there was no evidence that the statements were spontaneous and that there were two inconsistencies in the victim's statements, giving differing answers when asked how many times defendant had molested the victim and describing the incidents in a different order in two different statements, were not sufficient to show that the trial court abused the court's discretion in admitting the statements. Flowers v. State, 255 Ga. App. 660, 566 S.E.2d 339 (2002) (decided under former O.C.G.A. § 24-3-16).

Statements of victim's mother held inadmissible.

- In a child custody proceeding, former O.C.G.A. § 24-3-16 did not apply to allow mother to present hearsay testimony regarding harassment of her children by their stepbrother. Martin v. True, 232 Ga. App. 435, 502 S.E.2d 285 (1998) (decided under former O.C.G.A. § 24-3-16).

Evidence inadmissible when child unavailable to testify.

- Child was not available within the meaning of former O.C.G.A. § 24-3-16; therefore, the child's mother's testimony regarding the child's out-of-court statements was inadmissible since the trial court excused the child without the child ever being sworn and examined as a witness because the child was distraught. Hines v. State, 248 Ga. App. 752, 548 S.E.2d 642 (2001) (decided under former O.C.G.A. § 24-3-16).

State failed to meet the state's burden of showing that an allegedly abused child was "available to physically appear" at the deprivation hearing as required for hearsay testimony to be admissible under former O.C.G.A. § 24-3-16. The juvenile court erred in relying on the hearsay testimony of a social worker and a DFCS case manager regarding what the child said. In the Interest A.T., 309 Ga. App. 822, 711 S.E.2d 382 (2011) (decided under former O.C.G.A. § 24-3-16).

Statements as to the circumstances in which appellant chased appellant's son down the hall while carrying a maul constitutes statements regarding any act of physical abuse within the meaning of former O.C.G.A. § 24-3-16. Brewton v. State, 216 Ga. App. 346, 454 S.E.2d 558 (1995), rev'd on other grounds, 266 Ga. 160, 465 S.E.2d 668 (1996) (decided under former O.C.G.A. § 24-3-16).

Child molestation victim's statements included in expert witness testimony are admissible.

- Trial court did not err in allowing into evidence the testimony of the prosecution's expert witness as to statements made to the witness by the child molestation victim, which statements were incriminating of defendant, since the record shows that the victim was not only available to testify in the proceedings, but was called as the prosecution's first witness and that, prior to the admission of the expert witness's testimony, the trial court determined that the circumstances surrounding the victim's statements provided sufficient indicia of reliability. Knopp v. State, 190 Ga. App. 266, 378 S.E.2d 703 (1989) (decided under former O.C.G.A. § 24-3-16).

Statements admissible when victim available.

- In a prosecution for child molestation, testimony by two witnesses regarding statements made by one of the victims about seeing the defendants engaged in sex was admissible since the victim, although not called by the state, was available to be called as a witness. Grimsley v. State, 233 Ga. App. 781, 505 S.E.2d 522 (1998) (decided under former O.C.G.A. § 24-3-16).

Hearsay statements of the victim were admissible because the defendant received notice of the state's intent to use the victim's out-of-court statements, the victim testified at trial, and the persons to whom the victim made the statements were subject to cross-examination at trial. Cornell v. State, 349 Ga. App. 883, 827 S.E.2d 63 (2019).

Statements made to government agency investigator admissible.

- Trial court did not err in admitting out-of-court statements made by a five-year-old victim to her aunt and a Department of Family Services investigator. McCormick v. State, 228 Ga. App. 467, 491 S.E.2d 903 (1997) (decided under former O.C.G.A. § 24-3-16).

In a proceeding to terminate the parental rights of a father who had been convicted of molesting his children, the trial court did not err in allowing a child protective services investigator, women's shelter manager, and a therapist to testify as to statements made by the children. In re S.M.L., 228 Ga. App. 81, 491 S.E.2d 186 (1997) (decided under former O.C.G.A. § 24-3-16).

Defendant's claim of error in the admission of an investigator's testimony regarding a child victim's statements to a forensic interviewer was rejected as the investigator was behind a two-way mirror when the victim made the statements and the victim knew that the investigator was listening. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240 (2006) (decided under former O.C.G.A. § 24-3-16).

In an action wherein two parents were found to have deprived an adopted child due to one parent's sexual abuse of the child and the other parent's failure to protect the child from such abuse, the juvenile court did not abuse the court's discretion by allowing the testimony of a forensic interviewer regarding statements made by the child as the Child Hearsay Statute, former O.C.G.A. § 24-3-16, permitted such testimony, despite the parents' challenges to the competency of the child. In the Interest of B.H., 295 Ga. App. 297, 671 S.E.2d 303 (2008) (decided under former O.C.G.A. § 24-3-16).

Question regarding victim's credibility properly admitted.

- Trial court properly admitted testimony from a psychologist who stated that the psychologist treated an 11-year-old girl after the girl told several people that her stepfather molested her and believed that the girl had not made up her story because the testimony was offered to rehabilitate the girl's credibility after the stepfather attacked the girl's credibility. Horne v. State, 262 Ga. App. 604, 586 S.E.2d 13 (2003) (decided under former O.C.G.A. § 24-3-16).

With regard to a defendant's convictions on four counts of aggravated child molestation and three counts of child molestation, the trial court did not err by failing to hold a hearing outside of the jury's presence with regard to the testimony of a social worker who made an audiotape of the victim's statement, and by allowing the social worker to testify as to the general credibility assessment of the victim because the defendant failed to object at trial to the social worker's testimony. By waiting to raise the issue on appeal, the defendant waited too late and such failure amounted to a waiver of any objection that might have been raised. Hargrove v. State, 289 Ga. App. 363, 657 S.E.2d 282 (2008), cert. denied, No. S08C0970, 2008 Ga. LEXIS 500 (Ga. 2008) (decided under former O.C.G.A. § 24-3-16).

Spontaneous statement admissible.

- When the victim, a 14-year-old, in a spontaneous, unprompted, crying event told the residential manager of the mobile home park in which the victim lived that the victim's father was abusing the victim and later that same day the victim made substantially the same statements to a government social worker, the statements bore sufficient indicia of reliability. Smith v. State, 207 Ga. App. 55, 427 S.E.2d 48 (1993) (decided under former O.C.G.A. § 24-3-16).

Showing of necessity to support the admission of a videotape of a police interview of the victim under former O.C.G.A. § 24-3-16 was satisfied by the fact that the victim was a witness at the trial whom the defendant was permitted to cross-examine. Knight v. State, 210 Ga. App. 228, 435 S.E.2d 682 (1993) (decided under former O.C.G.A. § 24-3-16).

When one of two victims was ruled incompetent to testify, but a pediatrician's testimony established that both girls had been sexually molested, and the other child testified that the defendant molested her and that she saw him molest her sister, the defendant's conviction was not based on inadmissible hearsay. Mantooth v. State, 197 Ga. App. 797, 399 S.E.2d 505 (1990), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003) (decided under former O.C.G.A. § 24-3-16).

Cumulative testimony concerning victim's statements held harmless error.

- After a witness was allowed to testify as to statements which were not made directly to the witness but which the witness observed and heard by watching a monitor during the taping, the testimony was not admissible. However, the testimony was merely cumulative of other testimony presented at trial, and the error consequently presented no ground for reversal. Kelly v. State, 197 Ga. App. 811, 399 S.E.2d 568 (1990) (decided under former O.C.G.A. § 24-3-16).

Trial court erroneously admitted under the Child Hearsay Statute, former O.C.G.A. § 24-3-16, the foster mother's statement that the foster mother overheard the children making remarks to one another that allegedly implicated the defendant in sexually abusing the children as the foster mother could not testify under former O.C.G.A. § 24-3-16 since the statement was not made to the foster mother; the evidence was cumulative of other evidence of abuse, however, so the error was harmless. Clemmons v. State, 282 Ga. App. 261, 638 S.E.2d 409 (2006) (decided under former O.C.G.A. § 24-3-16).

Habeas court properly denied the appellant relief based on ineffective assistance because the appellant did not question appellate counsel regarding that allegation and so there was no record of why appellate counsel did not pursue the specific issue at the motion for new trial stage or on direct appeal; plus, the habeas court resolved the allegation by determining the admission of the child's videotaped forensic interview was harmless because it was cumulative of the child's trial testimony. Cobb v. Hart, 295 Ga. 89, 757 S.E.2d 840 (2014)(decided under former O.C.G.A. § 24-3-16).

More than one statement admissible.

- Trial court did not err in allowing the introduction of the victim's prior consistent statements before the victim testified. Wooten v. State, 244 Ga. App. 101, 533 S.E.2d 441 (2000) (decided under former O.C.G.A. § 24-3-16).

Erroneous admission of the child's statements is only reversible if it appears likely that the hearsay contributed to the guilty verdict. Estep v. State, 238 Ga. App. 170, 518 S.E.2d 176 (1999) (decided under former O.C.G.A. § 24-3-16).

Judge was not required to conduct a hearing to determine whether there existed any indicia of reliability surrounding statements made by a child to a psychologist in a parental rights termination proceeding. In re D.R.C., 198 Ga. App. 348, 401 S.E.2d 754 (1991) (decided under former O.C.G.A. § 24-3-16).

Necessary finding of admissibility implicit in judge's ruling.

- Mother's testimony as to what the victim told her was properly admitted in evidence, even though the judge did not make a specific finding of "sufficient indicia of reliability." Implicit in any ruling by a judge is that the judge has made the necessary finding of admissibility before admitting such evidence. Windom v. State, 187 Ga. App. 18, 369 S.E.2d 311 (1988) (decided under former O.C.G.A. § 24-3-16).

It is implicit in the admission of statements pursuant to former O.C.G.A. § 24-3-16 that the trial court made the necessary finding. Calloway v. State, 202 Ga. App. 816, 415 S.E.2d 533 (1992) (decided under former O.C.G.A. § 24-3-16); Green v. State, 212 Ga. App. 250, 441 S.E.2d 689 (1994); Roberson v. State, 214 Ga. App. 288, 447 S.E.2d 640 (1994) (decided under former O.C.G.A. § 24-3-16);(decided under former O.C.G.A. § 24-3-16).

Proffer required to appeal exclusion of testimony.

- Defendant's failure to make a proffer at trial showing that testimony should have been admitted under former O.C.G.A. § 24-9-5 precluded consideration on appeal of the issue of the exclusion of such testimony. Jones v. State, 232 Ga. App. 505, 502 S.E.2d 345 (1998) (decided under former O.C.G.A. § 24-3-16).

Effective assistance of counsel.

- Alleged failure of counsel to demand a reliability ruling for those witnesses who were called to testify about hearsay statements made by the victim did not constitute ineffective assistance since counsel did demand a reliability ruling regarding the pediatrician's repetition of the victim's statement, counsel filed a motion to invoke the procedures of Sosebee v. State, 257 Ga. 298, 357 S.E.2d 562 (1987), and when the motion was heard the state indicated that the victim would testify. Also, there was a sufficient showing of indicia of reliability, within the meaning of former O.C.G.A. § 24-9-5, as to all out-of-court statements made by the victim, which were testified to by witnesses in the presence of the jury. Williamson v. State, 207 Ga. App. 565, 428 S.E.2d 628 (1993) (decided under former O.C.G.A. § 24-3-16).

Defendant was not denied effective assistance of counsel at a trial for aggravated child molestation because it would have been futile to object to the 10-year old victim's videotaped statement, which was admissible under the former statute's exception for a child's statement of sexual abuse, since there were sufficient indicia of reliability and the child was available to testify at trial. Campos v. State, 263 Ga. App. 119, 587 S.E.2d 264 (2003) (decided under former O.C.G.A. § 24-3-16).

Defendant did not receive ineffective assistance of counsel for counsel's failure to object to a psychologist's testimony that it was uncommon for a child to be able to specify incident dates if there was a recurrence of events over a prolonged period; the psychologist did not improperly bolster the victim's testimony and the psychologist's testimony was not a comment on an ultimate issue of fact; the trial court was authorized to find that the conclusion drawn by the expert was beyond the ken of the jurors. Maddox v. State, 275 Ga. App. 869, 622 S.E.2d 80 (2005) (decided under former O.C.G.A. § 24-3-16).

Decision as to whether to call an expert witness concerning interviewing techniques of children in a child molestation case is one of trial strategy and in a case where trial counsel testified at the second hearing on the motion for new trial that trial counsel did not consult an expert on interviewing techniques because after reviewing the videotape, trial counsel determined that the factors outlined in case law had been met, trial counsel had filed three pretrial motions seeking to exclude or restrict child hearsay statements, and required the state to lay a proper foundation for the use of child hearsay, trial counsel's performance was not deficient in that regard. Nichols v. State, 288 Ga. App. 118, 653 S.E.2d 300 (2007) (decided under former O.C.G.A. § 24-3-16).

Defendant failed to establish ineffective assistance of counsel with regard to defendant's trial and conviction for child molestation based on trial counsel's failure to object and conceding to the issue of reliability for the admission of the child victim's hearsay testimony as: (1) defendant failed to point to any evidence indicating that the victim's statements were unreliable since the statements were videotaped at a neutral location in a room alone with a professional forensic interviewer; (2) the forensic interviewer testified that the victim was very bright and articulate and did not appear to be coached; (3) the victim's videotaped statements were spontaneous, voluntary, and not coerced; (4) the victim's videotaped statements were consistent with other out-of-court statements; and (5) significantly, the victim's statements were consistent with defendant's statements to police. Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740 (2008) (decided under former O.C.G.A. § 24-3-16).

Although defendant's trial counsel's performance fell below the objective standard of reasonableness under the first prong of the Strickland ineffective assistance of counsel test, the error however was harmless because although defendant's trial counsel performed deficiently in failing to raise a hearsay objection to admission of the victim's statements contained in the videotaped interview, defendant did not show that trial counsel's error prejudiced the defense since statements made by the victim during the videotaped interview were merely cumulative of testimony the victim offered at trial and for which the victim was cross-examined by trial counsel. Forde v. State, 289 Ga. App. 805, 658 S.E.2d 410 (2008) (decided under former O.C.G.A. § 24-3-16).

Trial counsel was not ineffective in failing to ask for a hearing on the admissibility of the child molestation victim's videotaped statement because counsel testified that counsel chose not to request a hearing under former O.C.G.A. § 24-9-5 since counsel had never seen a victim's statement declared inadmissible, and counsel did not want the delay resulting from such a request to give the state additional time to prepare the state's case; trial counsel is under no obligation to invoke his or her client's legal right to a hearing designed to protect that client's interests if the invocation of that abstract right would, in his or her professional judgment of the circumstances presented by a specific case, do actual harm to those interests. Robinson v. State, 308 Ga. App. 45, 706 S.E.2d 577 (2011) (decided under former O.C.G.A. § 24-3-16).

Trial counsel was not ineffective for failing to object to the trial court's determination that the victim was present and available to testify without further inquiring into the reliability of the victim's out-of-court statements under former O.C.G.A. § 24-3-16 because counsel did not want the statements to be excluded in light of counsel's trial strategy to show that the victim had been coached. Henry v. State, 316 Ga. App. 132, 729 S.E.2d 429 (2012) (decided under former O.C.G.A. § 24-3-16).

Trial counsel was not ineffective in failing to object to the testimony of the victim's friend to whom the victim first reported that the defendant had raped the victim, to the testimony of the legal guardian's daughter who relayed a similar outcry, or to the testimony of the victim's legal guardian, who described the conversation in which the victim finally disclosed the abuse, because each of the conversations transpired before the victim turned 16 years old, the statements were admissible under the Child Hearsay Statute, and any objection by counsel would not have been sustained. Brown v. State, 336 Ga. App. 428, 785 S.E.2d 84 (2016).

Trial counsel was not ineffective for failing to object to testimony from the victim's mother and father about the victim's statements to them about the defendant's actions as the Child Hearsay Statute, O.C.G.A. § 24-8-820, permitted evidence of the victim's outcry statements and forensic interview to be admitted even though it was bolstering because the victim was younger than 16 years old when the victim made the out-of-court statements; the statements described acts of sexual contact performed on the victim or in the victim's presence by the defendant; the state provided the defendant with notice prior to trial of the stae's intention to use the out-of-court statements; the victim testified at trial; and the mother and father were subject to cross-examination. Jackson v. State, 344 Ga. App. 618, 810 S.E.2d 672 (2018).

Counsel was not ineffective for failing to object to the state's notice prior to trial that the state intended to use at trial a child's out-of-court statement because the state's email to defense counsel constituted proper notice as it was supplied approximately two weeks before trial, and it complied with the notice requirement in O.C.G.A. § 24-8-820. Adams v. State, 350 Ga. App. 340, 829 S.E.2d 412 (2019).

Speculation does not support ineffective assistance of counsel claim.

- Defendant's ineffective assistance of counsel claim was rejected as the defendant's claim that trial counsel was not knowledgeable about the Child Hearsay Statute, former O.C.G.A. § 24-9-5, and failed to highlight the unreliability of the child victim's statement to a nurse was based on mere speculation that a more thorough cross-examination would have altered the outcome at trial. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240 (2006) (decided under former O.C.G.A. § 24-3-16).

Defendant's right to notice of statements before trial.

- There was no requirement that the state provide defendant with pretrial notice of the state's intention to introduce child hearsay statements and, when defendant was notified in advance that there was nothing exculpatory in videotaped interviews with children and defendant was allowed to view tapes during the trial, defendant's due process rights were not violated by not being permitted to view the tapes prior to trial. Thornton v. State, 264 Ga. 563, 449 S.E.2d 98 (1994) (decided under former O.C.G.A. § 24-3-16).

Evidence sufficed for aggravated child molestation conviction.

- Evidence and testimony from several adults that the victim reported defendant's sexual assault in the manner charged in the indictment was sufficient to convict for aggravated child molestation, although the victim testified that the criminal act occurred while the victim was wearing jeans. McGuire v. State, 209 Ga. App. 813, 434 S.E.2d 802 (1993) (decided under former O.C.G.A. § 24-3-16).

Evidence was sufficient to convict defendant of child molestation, even if much of the evidence was hearsay repetition of the child's out-of-court statements, as defendant failed to argue that the evidence did not satisfy the reliability criteria set forth in former O.C.G.A. § 24-9-5. Brown v. State, 267 Ga. App. 826, 600 S.E.2d 774 (2004) (decided under former O.C.G.A. § 24-3-16).

There was sufficient evidence to support a defendant's convictions for aggravated child molestation, child molestation, and false imprisonment with regard to allegations that the defendant forced a romantic friend's minor child to perform oral sex on the defendant several times over a three year period, based on the testimony of the victim (which alone was sufficient), the videotaped forensic interview of the victim, the testimony of the police investigator and the victim's mother concerning what the victim told them, as well as the testimony of the victim's siblings, who were eyewitnesses to one incident. Further, the testimony of the victim that the defendant locked the victim in the house and would not let the victim leave supported the conviction on the false imprisonment charge, and the videotaped forensic interview and the testimony of the police investigator and the victim's mother concerning what the victim told them were admissible as substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-9-5. Metts v. State, 297 Ga. App. 330, 677 S.E.2d 377 (2009) (decided under former O.C.G.A. § 24-3-16).

Failing to object to the testimony of the state's witnesses regarding what the victim told the witnesses was not a deficiency by counsel because these statements would have been admissible under the Child Hearsay Statute, former O.C.G.A. § 24-9-5, since the victim, age ten, was a witness at trial whom the defendant cross-examined. Silcox v. State, 241 Ga. App. 845, 528 S.E.2d 271 (2000) (decided under former O.C.G.A. § 24-3-16).

Parents' testimony admissible.

- When the record shows the victims testified at trial and were subject to examination and cross-examination, the trial court did not abuse the court's discretion under the Child Hearsay Statute, former O.C.G.A. § 24-9-5, by admitting the parents' testimony about things the victims said to the parent's about defendant. Kight v. State, 242 Ga. App. 13, 528 S.E.2d 542 (2000) (decided under former O.C.G.A. § 24-3-16).

Statement made to therapist admissible.

- Court properly admitted hearsay testimony by a child's therapist that the defendant "put his thing" in the child's mouth where the statement was made in a child-friendly, one-on-one therapy session, not an investigative interview, and the statement was made in response to a non-leading question. Guzman v. State, 273 Ga. App. 819, 616 S.E.2d 142 (2005) (decided under former O.C.G.A. § 24-3-16).

Statement during medical examination admissible.

- Nurse's testimony as to a 13-year-old victim's statements that defendant forced intercourse upon the victim made during the medical examination was properly admissible under former O.C.G.A. § 24-9-5. Bell v. State, 294 Ga. App. 779, 670 S.E.2d 476 (2008) (decided under former O.C.G.A. § 24-3-16).

Statements admissible.

- In a child molestation case, the trial court properly allowed a deputy to read the statements of three of the teenagers involved into evidence; while all of the teenagers and their parents were present when the teenagers wrote out their statements for the deputy, the record reflected no evidence of undue pressure or influence, and the deputy was not directly involved in later videotaped interviews. Krirat v. State, 286 Ga. App. 650, 649 S.E.2d 786 (2007), cert. denied, No. S07C1788, 2007 Ga. LEXIS 745 (Ga. 2007) (decided under former O.C.G.A. § 24-3-16).

After a trial court properly admitted sufficiently reliable videotaped statements made by three siblings who were the victims of a defendant's cruelty, there was no error in also admitting testimony from nurses from the hospital where the children were taken regarding statements the children made to the nurses as the matters testified to by the nurses were the same matters detailed in the videotaped statements. Williams v. State, 293 Ga. App. 617, 668 S.E.2d 21 (2008) (decided under former O.C.G.A. § 24-3-16).

Under O.C.G.A. § former O.C.G.A. § 24-9-5, the trial court properly allowed a school counselor to testify about the victim's out-of-court statements to the counselor. The victim was available to testify and did in fact testify and was thoroughly cross-examined as was the counselor; furthermore, because the statements were admissible, counsel was not ineffective for failing to object to the statements. Hilliard v. State, 298 Ga. App. 473, 680 S.E.2d 541 (2009) (decided under former O.C.G.A. § 24-3-16).

Victim's testimony alone was sufficient to prove defendant guilty of child molestation (O.C.G.A. § 16-6-4(a)) and aggravated child molestation (O.C.G.A. § 16-6-22.2(b)), pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8). The testimony of the victim's cousin, two school friends, and the interviewing detective, was admissible as substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-9-5. Vaughn v. State, 301 Ga. App. 391, 687 S.E.2d 651 (2009) (decided under former O.C.G.A. § 24-3-16).

There was competent evidence to support the defendant's convictions for aggravated child molestation, O.C.G.A. § 16-6-4(c), and child molestation, O.C.G.A. § 16-6-4(a)(1), because the victim's step-uncle and one of the forensic interviewers proffered evidence that the defendant sexually molested the victim pursuant to the Child Hearsay Act, former O.C.G.A. § 24-9-5; although the victim testified that the defendant touched the victim in a way that the victim did not like, the victim did not provide any details about those incidents, but both the step-uncle and the forensic interviewer testified that the victim disclosed that the defendant touched the victim's privates with the defendant's hand and the defendant's own privates and forced the victim to place the victim's mouth on the defendant's privates, and the jury resolved any credibility or inconsistency issues against the defendant. Westbrooks v. State, 309 Ga. App. 398, 710 S.E.2d 594 (2011) (decided under former O.C.G.A. § 24-3-16).

Trial court did not abuse the court's discretion in allowing the testimony of an investigator, a pediatrician, and a forensic interviewer regarding statements the victims made to them under former O.C.G.A. § 24-9-5, because the witnesses did not opine as to whether the victims were telling the truth but rather testified regarding the victims' statements to them. Ledford v. State, 313 Ga. App. 389, 721 S.E.2d 585 (2011) (decided under former O.C.G.A. § 24-3-16).

Admission of testimony from the victim's mother and a police officer as to what the victim told them about the defendant's inappropriate contact with the victim was proper as the victim was only 10 years old, the victim testified about the abuse, and both the mother and the officer were available for cross-examination about the out-of-court statements. McMurtry v. State, 338 Ga. App. 622, 791 S.E.2d 196 (2016).

Trial court did not err in allowing testimony of the victim's aunt, the victim's mother, and the investigating detective regarding statements the victim made to them regarding the defendant's abuse as such evidence was admissible under the Child Hearsay Statute (see now O.C.G.A. § 24-8-820). Laster v. State, 340 Ga. App. 96, 796 S.E.2d 484 (2017)(decided under former O.C.G.A. § 24-3-16).

Plain error doctrine inapplicable.

- Plain error doctrine had been limited to capital cases and to criminal cases in which the trial judge allegedly intimated an opinion of the defendant's guilt in violation of O.C.G.A. § 17-8-57 and had no application to a defendant's claims that a child molestation victim's hearsay statements served to bolster the victim's credibility and lacked sufficient indicia of reliability. Brown v. State, 280 Ga. App. 884, 635 S.E.2d 240 (2006) (decided under former O.C.G.A. § 24-3-16).

Harmless error.

- If the trial court erroneously allowed under former O.C.G.A. § 24-9-5 the testimony of the psychologist in the child molestation case, any error was harmless; although the defendant argued that the testimony was the only evidence of the defendant's mental state, there was ample evidence that the defendant had the propensity to molest children, including the victim's detailed statements, the corroborating medical examination, and the testimony of the children's parent that the defendant had molested the children's parent when the children's parent was very young. Clemmons v. State, 282 Ga. App. 261, 638 S.E.2d 409 (2006) (decided under former O.C.G.A. § 24-3-16).

With regard to a defendant's convictions for child molestation and related crimes arising from actions the defendant took toward three children and those that the defendant forced the children to engage in by gunpoint while the defendant was a babysitter for the children, although the testimony of the mother of one of the victims that the victim was forced to have sex with the defendant was double hearsay and inadmissible, the error was not reversible since other legally admissible evidence of the same fact was introduced, therefore, the error was harmless. Sullivan v. State, 295 Ga. App. 145, 671 S.E.2d 180 (2008), cert. denied, No. S09C0624, 2009 Ga. LEXIS 215 (Ga. 2009) (decided under former O.C.G.A. § 24-3-16).

Jury Issues and Instructions

Evidence was sufficient for the jury to find a defendant guilty of child molestation beyond a reasonable doubt as it was within the jury's province to reject the defendant's defense denying the crime with regard to the victim as well as with regard to the witnesses who testified as to similar transactions with the defendant. The testimony of the victim was corroborated by an investigator and a forensic interviewer, who testified as to what the victim had told had occurred; the victim's statements were corroborated by the sheriff's investigator; and the jury was entitled to consider the victim's out-of-court statements as substantive evidence under the Child Hearsay Statute, former O.C.G.A. § 24-3-16. Lamb v. State, 293 Ga. App. 65, 666 S.E.2d 462 (2008) (decided under former O.C.G.A. § 24-3-16).

Trial court did not err in denying the defendant's motion for new trial pursuant to O.C.G.A. §§ 5-5-20 and5-5-21 because the jury was authorized to conclude that the defendant was guilty of child molestation in violation of O.C.G.A. § 16-6-4(a)(1); under the Child Hearsay Statute, former O.C.G.A. § 24-3-16, the jury was entitled to consider the victim's out-of-court statements as substantive evidence, and the victim was made available at trial for confrontation and cross-examination, at which time the jury was allowed to judge the credibility of the victim's accusations. Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485 (2011) (decided under former O.C.G.A. § 24-3-16).

Evidence that a defendant became highly intoxicated while having visitation with his seven-year-old daughter, that he licked her vagina, kissed her with his tongue in her mouth, and made her rub her hand on his penis was sufficient to support convictions for aggravated child molestation in violation of O.C.G.A. § 16-6-4(c). A jury could infer from the evidence that the defendant's intent was to arouse and satisfy his sexual desires pursuant to O.C.G.A. § 16-2-6. Obeginski v. State, 313 Ga. App. 567, 722 S.E.2d 162 (2012), cert. denied, No. S12C0908, 2012 Ga. LEXIS 1013 (Ga. 2012) (decided under former O.C.G.A. § 24-3-16).

Credibility of witness within jury's purview.

- Despite defendant's argument that expert testimony showed it as likely that statements of defendant's grandson to the lead detective regarding defendant's sexual molestation of the grandson were coached, those were deemed admissible pursuant to the Child Hearsay Statute, former O.C.G.A. § 24-3-16, in that they were statements by a child available to testify in the proceedings that described abuse of a child under 14 which provided sufficient indicia of reliability; determinations as to the credibility of a witness were a matter solely within the jury's purview and would not be disturbed on appeal. Wright v. State, 259 Ga. App. 74, 576 S.E.2d 64 (2003) (decided under former O.C.G.A. § 24-3-16).

RESEARCH REFERENCES

Corroboration of a Child's Sexual Abuse Allegation with Behavioral Evidence, 25 POF3d 189.

ALR.

- Witnesses: child competency statutes, 60 A.L.R.4th 369.

Validity, construction, and application of child hearsay statutes, 71 A.L.R.5th 637.

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